719 F.2d 1153 (Fed. Cir. 1983), 83-1059, Heisig v. United States

Docket Nº:Appeal No. 83-1059.
Citation:719 F.2d 1153
Party Name:David W. HEISIG, Appellant, v. The UNITED STATES, Appellee.
Case Date:October 19, 1983
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1153

719 F.2d 1153 (Fed. Cir. 1983)

David W. HEISIG, Appellant,


The UNITED STATES, Appellee.

Appeal No. 83-1059.

United States Court of Appeals, Federal Circuit

October 19, 1983

Page 1154

Norman L. Blumenfeld, Washington, D.C., argued for appellant.

Louis R. Davis, Washington, D.C., argued for appellee. Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Mitchell R. Berger, Asst. U.S., Attys., Washington, D.C., were on the brief for appellee.

Charles R. Fulbruge, III, Major JAGC and Steven M. Post, Captain, JAGC, Dept. of the Army, Washington, D.C., of counsel.

Before MARKEY, Chief Judge, BENNETT and SMITH, Circuit Judges.

EDWARD S. SMITH, Circuit Judge.

In this military pay case appellant (Heisig) appeals from a judgment of the United States District Court for the District of Columbia upholding the Army Board for the Correction of Military Records (correction board) in its denial of Heisig's application for medical disability retirement. We affirm.


The principal question presented is one of first impression for this court: What is the standard of review by the Federal Circuit of the judgment of a United States district court entered pursuant to the "Little Tucker Act," 1 in the context of the district court's review of a decision of a military correction board involving military disability retirement? The specific issue is whether the district court erroneously affirmed the decision of the correction board as one supported by substantial evidence.


The facts material to this appeal are as follows: 2 Heisig served for more than 15 years in the United States Army, compiling a superior record notwithstanding a long history of severe, continuing medical problems involving primarily the effects of a hiatal hernia.

Appellant was advised that, having for the second time failed of selection for promotion, he would be discharged as required by 10 U.S.C. Sec. 3303. 3 During the pre-discharge

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physical examination an Army physician found Heisig unfit for duty because he suffered from gastroesophageal reflux, and referred him to a Medical Evaluation Board (MEB). The Army, during evaluation, indefinitely postponed Heisig's previously ordered discharge, and he was later administratively separated by honorable discharge on June 5, 1978. In the interim the MEB, based on its findings of medical impairment, concluded that the doubt as to Heisig's ability to perform his duties, requisite to referral of the matter to an informal Physical Evaluation Board (PEB), existed. The informal PEB found him fit for duty and concluded, as did a formal PEB after a hearing, that appellant had failed to overcome the presumption of fitness for duty based on continuation of performance of duties until the time of referral for medical evaluation. 4

This finding was later upheld both initially and upon reconsideration by the United States Army Physical Disability Agency. In October 1978, Heisig received a combined disability rating of 40 percent from the Veterans Administration and, in November 1978, applied to the correction board to convert his honorable discharge into a medical disability retirement. The correction board also, both initially and upon reconsideration, denied Heisig's request.

Appellant then filed suit in the district court, challenging the decision of the correction board. After a hearing on dispositive motions filed by the parties, the district court granted the Government's motion for affirmance of the decision of the correction board. Heisig appealed to the United States Court of Appeals for the District of Columbia Circuit, which properly transferred the appeal to this court pursuant to 28 U.S.C. Sec. 1631. 5 We have jurisdiction under 28 U.S.C. Sec. 1295(a)(2). 6

Standard of Review in the District Court

Contrary to the arguments of both parties, there is more than one standard of review involved in this case. The confusion is not unusual, as pointed out by Judge Nies in her specially concurring opinion in SSIH Equipment S.A. v. U.S. Int'l Trade Comm'n, 718 F.2d 365, 218 USPQ 678, 690 (Fed.Cir.1983).

It is settled law that claims for military pay and allowances are actionable under the Tucker Act; although relief has usually been first sought from military correction boards since their creation in 1946, there is here no requirement of exhaustion of administrative remedies prior to pursuit of judicial review. 7 Prior to enactment of the Federal Courts Improvement Act, original jurisdiction over these claims was exercised by the Court of Claims pursuant to 28 U.S.C. Sec. 1491, and, to the extent that the amount of the claim did not exceed $10,000, by the United States district courts concurrently with the Court of Claims, pursuant

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to 28 U.S.C. Sec. 1346. 8 The jurisdiction formerly allocated to the Court of Claims under 28 U.S.C. Secs. 1491 and 1346(a) has, since October 1, 1982, resided in the United States Claims Court, pursuant to 28 U.S.C. Sec. 1491, while claims under $10,000 in amount continue to be actionable concurrently in the district courts. 9

It is equally settled that responsibility for...

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